Federal lawsuit against OpenBand dismissed; residents plan to refile

By Caitlin Gibson

The Washington Post

Aug. 8, 2011

A lawsuit filed by a group of Loudoun County homeowners against OpenBand, a broadband telecommunications provider that serves about 4,700 homes in eastern Loudoun, was dismissed at a July 29 hearing in federal court.Erika Hodell-Cotti, president of the Southern Walk Homeowners Association in Ashburn, the plaintiff in the case, noted that the lawsuit was dismissed without prejudice — meaning that the complainants could revise and refile their complaint. They intend to do that, she said.

 The lawsuit was filed in U.S. District Court in Alexandria in May, a culmination of years of complaints and frustration from residents of Ashburn and Lansdowne neighborhoods where OpenBand has long been the sole cable and Internet service provider.
In 2001, developer Van Metre Companies gave OpenBand the exclusive right to lay fiber-optic cables beneath the lawns of the new communities. In return for OpenBand’s investment of more than $20 million to create the cable infrastructure, a contract term of more than 60 years was established. As a result of the exclusive property easements established in the contract, competing cable providers, such as Comcast and Verizon, are unable to get access to the property to provide service for homeowners.Homeowners have voiced their dissatisfaction with Open Band before the county Board of Supervisors. The board is considering whether to renew the controversial franchise agreement between the county and the broadband provider. One homeowners association from the Leisure World community in Lansdownehas expressed support for Open Band,  but residents of other Lansdowne and Ashburn communities say they are frequently unable to use Internet or cable service without disruptions.

In the federal lawsuit, residents of the Southern Walk subdivision alleged that the exclusive property easements established by OpenBand’s contract with Van Metre are in violation of federal communications law. County leaders responded to these allegations in June with a request to Virginia State Attorney Ken Cuccinelli II (R) to conduct an antitrust investigation into the company’s business practices.

Cotti said that her association plans to strengthen and refile its lawsuit.

“It’s my belief that the court realizes that there’s an issue here, and [the motion to dismiss] was to really have the association put together a more comprehensive complaint that outlines the absolute complexity of the situation,” she said. “Our plans are definitely to amend our complaint.”

She said her community was also troubled by OpenBand’s claims that the company is open to working with the homeowners association directly to address the problem.

OpenBand “says that they’re willing to meet with and work with the association communities when, in fact, they are not,” Cotti said. “Our last meeting was November 2010. We have asked through our attorneys to meet with them, and they have declined.”

In a statement, OpenBand said that the company was satisfied with the outcome of the hearing.

“OpenBand is pleased that the court granted our motion to dismiss. We can return full attention to reaching mutually agreeable terms with Loudoun County for our new Franchise Agreement and providing excellent service to our customers,” the statement said.

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